United States District Court, D. Maryland
L. Hollander United States District Judge
Memorandum Opinion resolves a motion filed under 28 U.S.C.
§ 2255 by Russell Carrington, who is self-represented.
See ECF 2112. The motion, filed on June 25, 2018, is
supported by a lengthy memorandum (ECF 2112-1) (collectively,
the “Petition”) and several exhibits. The
government opposes the Petition. ECF 2119
(“Opposition”). Carrington replied (ECF 2120,
“Reply”) and submitted additional exhibits.
Reply, Carrington asserted, for the first time, that after
his sentencing in this case, a State conviction underlying
his career offender designation was subsequently expunged by
a Maryland court. And, he complains that his lawyer failed to
raise this issue on appeal. Because Carrington raised a new
issue in his Reply (see ECF 2112), by Order of
December 13, 2018, I asked the government to respond. ECF
2139. The government's response is docketed at ECF 2141.
Carrington again replied. ECF 2145.
28 U.S.C. § 2255(b), a hearing is required
“[u]nless the motion and the files and records of the
case conclusively show the prisoner is entitled to no relief
. . . .” This is such a case. No. hearing is necessary.
For the reasons that follow, I shall deny the Petition.
relevant time, Carrington was a member of the Black Guerilla
Family (“BGF”), a street and prison gang.
“From 2007 through 2013, the Baltimore City Detention
Center [‘BCDC'] was home to a sprawling criminal
enterprise led by the [BGF].” United States v.
Carrington, 700 Fed. App'x 224, 226 (4th Cir. 2017).
an inmate at BCDC, was one of 44 defendants federally
indicted in 2013 on charges that included Racketeering
Conspiracy under the Racketeering Influenced Corrupt
Organizations Act (“RICO”), 18 U.S.C. § 1961
et seq., and conspiracy to distribute and possess
with intent to distribute controlled dangerous substances.
ECF 418 (Superseding Indictment); ECF 869 (Second Superseding
Indictment). As indicated, the charges were rooted in the
pervasive criminal enterprise at BCDC, a facility for
pretrial detainees, involving the smuggling of narcotics,
tobacco, and cell phones. The defendants generally consisted
of two groups: BGF members who were inmates at BCDC, and
corrupt correctional officers who worked at BCDC and helped
to facilitate the criminal enterprise. The government claims
that Carrington was a “high-ranking member of BGF . . .
.” ECF 2119 at 2.
to trial, on October 22, 2014, the government filed a notice
of intent to seek an enhanced minimum sentence as to
Carrington, pursuant to 21 U.S.C. § 851. ECF 1110. This
alerted Petitioner that a maximum sentence of thirty years
would be sought if he was found to have at least one prior
conviction for a felony drug offense.
most of the defendants pleaded guilty, Carrington was one of
eight defendants who proceeded to a jury trial, at which
Judge J. Frederick Motz presided. The trial began on November
17, 2014, and on February 5, 2015, the jury returned a
verdict of guilty as to Carrington and four other defendants.
ECF 1425; ECF 1426. Two of the five convicted defendants were
BGF gang members who had been inmates at BCDC and three were
correctional officers who worked at BCDC. In particular,
Carrington was convicted of racketeering conspiracy (Count
One) and conspiracy to distribute drugs (Count Two),
i.e., oxycodone, buprenorphine, marijuana, and
Presentence Report (“PSR”) was filed on March 16,
2015. ECF 1558. Carrington's sentencing was held on
March 27, 2015. ECF 1584. At sentencing, the Court determined
that Carrington had an offense level of 34 and a criminal
history category of VI. ECF 1901 (Sentencing Transcript) at
17; ECF 1609 (Statement of Reasons); see also ECF
1558, ¶¶ 15-22. Therefore, Carrington had an
advisory sentencing guidelines range of 262 to 327 months of
imprisonment. ECF 1558, ¶ 108.
according to the PSR, Carrington had a total offense level of
34 after applying enhancements to his base offense level.
Alternatively, he also had an offense level of 34 because he
was a career offender. And, he had a criminal history
category of VI, based on his criminal history points and also
because he was a career offender. See ECF 1558,
¶¶ 13-24, 44-47.
government sought a total sentence of 300 months (25 years)
of incarceration. ECF 1901 at 6. However, the district court
varied downward on the basis of the factors under 18 U.S.C.
§ 3553(a), and imposed a total sentence of 210 months
(18 years) imprisonment, i.e., 52 months below the
bottom of Carrington's advisory sentencing guideline
range, and 90 months below the government's
recommendation. ECF 1608 (Judgment, docketed April 8, 2015);
ECF 1609 (Statement of Reasons); ECF 1901 at 17.
March 28, 2015, Petitioner filed a Notice of Appeal. ECF
1586. In a consolidated appeal, involving the other
defendants convicted at trial, the Fourth Circuit affirmed
Petitioner's convictions and sentence by way of an
opinion issued on July 25, 2017. ECF 1992; see United
States v. Carrington, et al., 700 Fed.Appx. 224 (4th
Cir. 2017). The Fourth Circuit concluded that the evidence
was sufficient to support Petitioner's racketeering
conviction and that the district court did not err in
admitting certain coconspirator testimony. Id. at
232 n. 2. However, as to one codefendant, Joseph Young, the
Court upheld the convictions but vacated the sentence and
remanded for a new sentencing. This is discussed,
Standard of Review
is self represented. Therefore, this Court must construe his
pleadings liberally. See Erickson v. Pardus, 551
U.S. 89, 94 (2007); see also Alley v. Yadkin County
Sheriff Dept., 698 Fed. App'x 141 (4th Cir. Oct. 5,
2017) (citing Erickson for the proposition that
“[p]ro se complaints and pleadings, however inartfully
pleaded, must be liberally construed and held to less
stringent standards than formal pleadings drafted by
28 U.S.C. § 2255, a prisoner may seek to vacate, set
aside, or correct his sentence on four grounds: (1) the
sentence was imposed in violation of the Constitution or laws
of the United States; (2) the court was without jurisdiction
to impose the sentence; (3) the sentence was in excess of the
maximum authorized by law; or (4) the sentence is otherwise
subject to collateral attack. See Hill v. United
States, 368 U.S. 424, 426-27 (1962) (citing 28 U.S.C.
§ 2255). “[A]n error of law does not provide a
basis for collateral attack unless the claimed error
constituted ‘a fundamental defect which inherently
results in a complete miscarriage of justice.'”
United States v. Addonizio, 422 U.S. 178, 185 (1979)
(quoting Hill, 368 U.S. at 428).
scope of a § 2255 collateral attack is far narrower than
an appeal, and a “‘collateral challenge may not
do service for an appeal.'” Foster v.
Chatman, U.S., 136 S.Ct. 1737, 1758 (2016) (quoting
United States v. Frady, 456 U.S. 152, 165 (1982)).
Thus, any failure to raise a claim on direct appeal
constitutes a procedural default that bars presentation of
the claim in a § 2255 petition unless the petitioner can
demonstrate “cause and prejudice” or
“actual innocence.” See Dretke v. Haley,
541 U.S. 386, 393 (2004): Reed v. Farley, 512 U.S.
339 (1994); Murray v. Carrier, 477 U.S. 478, 485
(1986); see also Bousley v. United States, 523 U.S.
614, 621 (1998) (“Habeas review is an extraordinary
remedy and will not be allowed to do service for an
appeal.”) (internal quotations and citations omitted);
United States v. Pettiford, 612 F.3d 270, 280 (4th
Cir. 2010); United States v. Mikalajunas, 186 F.3d
490, 492-93 (4th Cir. 1999). In contrast, any “failure
to raise an ineffective-assistance-of-counsel claim on direct
appeal does not bar the claim from being brought in a later,
appropriate proceeding under § 2255.” Massaro
v. United States, 538 U.S. 500, 509 (2003).
the rule governing procedural default of claims brought under
§ 2255 precludes consideration of any contentions that
“‘could have been but were not pursued on direct
appeal, [unless] the movant . . . show[s] cause and actual
prejudice resulting from the errors of which he
complains.'” Pettiford, 612 F.3d at 280
(quoting Mikalajunas, 186 F.3d at 492-93). Under the
“cause and prejudice” standard, the petitioner
must show: (1) cause for not raising the claim of error on
direct appeal; and (2) actual prejudice from the alleged
error. Bousley, 523 U.S. at 622; see also
Dretke, 541 U.S. at 393; Massaro, 538 U.S. at
505; Reed, 512 U.S. at 354 (“the writ is
available only if the petitioner establishes
‘cause' for the waiver and shows ‘actual
prejudice resulting from the alleged violation.'”);
Murray v. Carrier, 477 U.S. at 485, 496;
Frady, 456 U.S. at 167-68; Mikalajunas, 186
F.3d at 492-93.
order to show cause for not raising the claim of error on
direct appeal, a petitioner must prove that “some
objective factor external to the defense such as the novelty
of the claim or a denial of effective assistance of
counsel” impeded their counsel's efforts to raise
the issue earlier. Coleman v. Thompson, 501 U.S.
722, 753 (1991); see Carrier, 477 U.S. at 492
(“[C]ause . . . requires a showing of some external
impediment preventing counsel from constructing or raising
the claim.”); Mikalajunas, 186 F.3d at 493
(movant must demonstrate “something external to the
defense, such as the novelty of the claim or a denial of
effective assistance of counsel”). Additionally, the
alleged error cannot simply create a possibility of
prejudice, but must be proven to work to the petitioner's
“actual and substantial disadvantage,
infecting his entire trial with error of constitutional
dimensions.” Frady, 456 U.S. at 170 (emphasis
in original). Pursuant to the Supreme Court's ruling in
Carrier, 477 U.S. at 494, prejudice does not support
relief of a procedural default in the absence of a showing of
cause. See also Engle v. Isaac, 456 U.S. 107, 134
actual innocence exception “only applies in limited
circumstances.” United States v. Jones, 758
F.3d 579, 583 (4th Cir. 2014). Indeed, it must be “an
extraordinary case, where a constitutional violation has
probably resulted in the conviction of one who is actually
innocent . . . .” Carrier, 477 U.S. at 496.
order to show “actual innocence, ” the petitioner
“must demonstrate actual factual innocence of the
offense of conviction, i.e., that petitioner did not
commit the crime of which he was convicted; this standard is
not satisfied by a showing that a petitioner is legally, but
not factually, innocent.” Mikalajunas, 186
F.3d at 494 (citing Sawyer v. Whitley, 505 U.S. 333,
339 (1992)); see also Bousley, 523 U.S. at 623.
Notably, the petitioner must meet this burden by clear and
convincing evidence. Mikalajunas, 186 F.3d at 494.
In other words, a “petitioner must show that it is more
likely than not that no reasonable juror would have convicted
him in light of the new evidence.” Jones, 758
F.3d at 583; see Bousley, 523 U.S. at 623.
Fourth Circuit recently said, “A valid actual innocence
claim ‘requires petitioner to support his allegations
of constitutional error with new reliable evidence - whether
it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence - that was not
presented at trial.'” Finch v. McKoy,
F.3d, 2019 WL 324667, at *4 (4th Cir. Jan. 25, 2019) (quoting
Schlup v. Delo, 513 U.S. 298, 324 (1995)). Moreover,
a petitioner must “‘demonstrate that the totality
of the evidence would prevent any reasonable juror from
finding him guilty beyond a reasonable doubt, such that his
incarceration is a miscarriage of justice.'”
Finch, 2019 WL 324667, at *4 (quoting Teleguz v.
Pearson, 689 F.3d 322, 329 (4th Cir. 2012)).
It is an “exacting standard, ” based on a
“‘holistic judgment about all the evidence'.
. . .” Finch, at *5 (quoting House v.
Bell, 547 U.S. 518, 539 (2006)).
claims that were previously litigated on direct appeal, they
are generally not cognizable under § 2255.
Schlup, 513 U.S. at 318-19. In Boeckenhaupt v.
United States, 537 F.2d 1182, 1183 (4th Cir. 1976), the
Court said that a petitioner “will not be allowed to
recast, under guise of a collateral attack, questions fully
considered” and decided on direct appeal. See also
Abbamonte v. United States, 160 F.3d 922, 924 (2d Cir.
failure to raise on direct appeal a claim of ineffective
assistance of counsel is not regarded as procedurally
defaulted. Massaro v. United States, 538 U.S. 500,
509 (2003). Thus, such a claim is not barred under §
asserts several grounds for relief. First, he claims that his
lawyer provided ineffective assistance of counsel by failing
to object to the drug quantity in the Presentence Report, and
to the court's failure to make particularized findings as
to drug quantity. ECF 212 3-6 at 4. And, he contends that his
attorney was ineffective for failure to object to a
four-level enhancement for role in the offense. Id.
at 3. In addition, he complains that his attorney was
ineffective because he failed to request an informant
instruction. Id. at 10. He also suggests an issue as
to sufficiency of the evidence.
addition, in Carrington's Reply (ECF 2120), he asserts
that he no longer qualifies as a career offender, due to a
post-sentencing expungement, and therefore his lawyer was
ineffective for “failing to seek corrective measures .
. . .” Id. at 1. In particular, Carrington
claims that one of his two prior State convictions, used to
establish his criminal history category, was expunged about
ten months after his federal sentencing. Id. at 9.
Therefore, he claims that his lawyer should have raised the
matter on appeal or sought a remand for resentencing.
Ineffective Assistance of Counsel
Sixth Amendment guarantees a criminal defendant the effective
assistance of counsel. Strickland v. Washington, 466
U.S. 668, 686 (1984); see also Buck v. Davis, U.S.,
137 S.Ct. 759, 775 (2017). Ineffective assistance of counsel
is a well recognized basis for relief under 28 U.S.C. §
2255. See generally Missouri v. Frye, 566 U.S. 134
(2012); Lafler v. Cooper, 566 U.S. 156 (2012);
Padilla v. Kentucky, 559 U.S. 356 (2010).
mount a successful challenge under 28 U.S.C. § 2255,
based on a Sixth Amendment claim of ineffective assistance of
counsel, a petitioner must satisfy the two-prong test set
forth in Strickland v. Washington, 466 U.S. 668,
687-88 (1984). See Chaidez v. United States, 568
U.S. 342, 348 (2013); Roe v. Flores-Ortega, 528 U.S.
470, 477 (2000); Lafler, 566 U.S. at 162-63;
Hill v. Lockhart, 474 U.S. 52 (1985); United
States v. Rangel, 781 F.3d 736, 742 (4th Cir. 2015);
Richardson v. Branker, 668 F.3d 128, 139 (4th Cir.
2012); United States v. Higgs, 663 F.3d 726, 735
(4th Cir. 2011); see, e.g., United States v. Baker,
719 F.3d 313, 318 (4th Cir. 2013).
first prong is known as the “performance prong, ”
which relates to professional competence. The petitioner must
show that his attorney's performance fell “below an
objective standard of reasonableness, ” measured by
“prevailing professional norms.”
Strickland, 466 U.S. at 688; see United States
v. Powell, 850 F.3d 145, 149 (4th Cir. 2017). The burden
is on the petitioner to establish “‘that counsel
made errors so serious that “counsel” was not
functioning as the ...